In re Election of Member of Rock Hill Bd. of Edn.

[This opinion has been published in Ohio Official Reports at 76 Ohio St.3d 601.]

IN RE ELECTION OF NOVEMBER 7, 1995 FOR THE OFFICE OF MEMBER OF ROCK

HILL LOCAL SCHOOL DISTRICT BOARD OF EDUCATION.

[Cite as In re Election of Member of Rock Hill Bd. of Edn., 1996-Ohio-356.]

Elections—Contest of election—R.C. 3515.10, construed and applied—Absent

voter’s ballot—R.C. 3509.05, construed and applied.

(No. 96-136—Submitted June 25, 1996—Decided October 9, 1996.)

APPEAL from the Court of Common Pleas of Lawrence County, No. 95-OC-873.

__________________

{¶ 1} This is an election-contest case which originated in the Court of

Common Pleas of Lawrence County. The facts giving rise to this appeal are as

follows.

{¶ 2} On November 6, 1995, the day before the general election in

Lawrence County, Ohio, Fred Blagg, a qualified voter, filed a petition with the

Lawrence County Board of Elections challenging sixty ballots that had been cast

by absentee voters. See R.C. 3505.20. Blagg alleged, among other things, that the

absentee voters had received assistance in voting and that none of the challenged

voters had marked the “assistance box” on his or her application for an absentee

ballot. On November 15, 1995, the board of elections conducted a hearing to

determine the validity of Blagg’s challenges to the absentee ballots. Following the

hearing, the board of elections, relying on R.C. 3509.05, voted not to count twenty-

four of the sixty challenged ballots on the basis that the ballots had been mailed to

the board of elections by persons other than the electors who had cast the ballots.1

1. The twenty-four electors whose absentee ballots were rejected by the board of elections on

grounds that the ballots had been placed in the mail by a third person were Virgil L. Cole, Richard

E. Cole, Russell Wayne Cox, Kenneth A. Drake, Nancy M. Drake, William Lee Wilson, Yvonne

Wilson, Billy Lee Wilson, Ronald Lee Holston, Joseph Hutchinson, Alfred E. Rife, Melanie Lee

Walters, David Allen Moore, Ronnie Lee Moore, Carl E. Large, Carl Large, Carlos R. Sharp, John

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{¶ 3} On November 21, 1995, the board of elections met for the official

canvassing of ballots. At this meeting, the board received a letter from the Chief

Elections Counsel for the Secretary of State of Ohio addressing, among other

things, the following question: “Is the ballot of an absentee voter disqualified

because someone other than the voter mails the completed ballot and identification

envelope to the board of elections?” The Chief Elections Counsel answered this

question in the negative, stating that, “No where [sic] in this section [R.C. 3509.05]

does it provide that if someone other than the elector mails the ballot or a family

member returns the ballot, that the ballot, if otherwise properly voted, is

disqualified. * * * The error in mailing, if any, is technical under R.C. 3505.28

and the voter’s ballot should be counted.” However, despite this advice, the board

of elections continued to adhere to its prior determination that R.C. 3509.05

required disqualification of the twenty-four ballots in question. On November 22,

1995, the board of elections certified the official results of the November 7, 1995

general election. In the race for the Office of Member of the Rock Hill Local

School District Board of Education, the three declared winning candidates and their

corresponding vote totals were Fred Wells (1,406 votes), Terry L. Barker (1,363

votes), and appellant Wanda Jenkins (1,255 votes). Jimmy Dale Massie, appellee,

finished fourth in the race, just sixteen votes behind Jenkins.

Nelson III, Phyllis Nelson, John L. Nelson, Manuel Russell, Justin Sharp, John Clifton Thomas and

Mona Lisa Keeton. However, the evidence before the board of elections at the November 15, 1995

hearing established that five of these electors (Richard E. Cole, Kenneth A. Drake, Nancy M. Drake,

Yvonne Wilson, and Ronald Lee Holston) had completed their own absentee ballots and had

personally mailed the completed ballots back to the board of elections. At least two other electors

whose ballots were rejected (Billie Lee Wilson and Mona Lisa Keeton) testified at the hearing but

were never asked who had mailed their ballots to the board of elections. Several other electors

whose ballots were rejected did not testify at the hearing and, thus, there was no evidence concerning

who had placed their completed ballots in the mail. As to the remaining electors whose ballots were

rejected on the basis that they had not personally mailed the ballot back to the board of elections,

the evidence at the November 15 hearing revealed that each of these electors had personally cast his

or her individual ballot and that the completed ballot had been placed in the mail by either a close

friend, a family member, or a relative.

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January Term, 1996

{¶ 4} On December 4, 1995, Massie filed, in the Court of Common Pleas of

Lawrence County, a petition to contest the election. In his complaint, Massie

alleged that the board of elections had abused its discretion in failing to count the

twenty-four absentee ballots that had been rejected by the board on grounds that the

ballots had been mailed by persons other than the electors who had cast the ballots.

In the complaint, Massie also claimed that “[t]he day before the November 7, 1995

general election and prior to the close of regular business hours, five (5) individuals

personally requested to vote absentee ballots at the office of the Board of Elections.

The five gave as their reasons for voting absentee that they would be out of the

county on election day. Two of the five were permitted to cast absentee ballots.

The other three, namely William Perry, Alberta Wilds, and Kathy Bamer were not

permitted [to] apply for or cast absentee ballots.” In this regard, Massie alleged

that the board of elections had abused its discretion in refusing to provide absent

voter’s ballots to the three electors who had been denied the right to vote.

{¶ 5} On December 18, 1995, the trial court conducted an evidentiary

hearing in the election contest action. On December 28, 1995, the trial court issued

a decision and judgment entry upholding Massie’s challenges to the election. With

respect to the twenty-four absentee ballots that had been rejected by the board of

elections, the trial court held that “[i]n light of the public policy favoring the

counting of ballots, and the absence of statutory language in R.C. 3509.05

specifying that an elector must personally place his or her ballot in the mail back to

the Board of Elections, it is my opinion that, under the facts of this case, that the

twenty-four absentee ballots at issue must be counted.” With respect to the three

electors who had been refused absentee ballots at the board of elections’ office the

day before the general election (William Perry, Alberta Wilds, and Kathy Bamer),

the trial court determined that the board of elections had improperly denied them

the right to vote, stating that “[t]estimony presented at trial established that three

electors who attempted to vote by absentee ballot at the Board of Elections’ office

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the day before the election, before the close of regular business hours, were

misinformed by the Board that they were not entitled to vote. * * * There is

absolutely no question, but that these three electors were entitled to vote an absentee

ballot.” Accordingly, in its December 28, 1995 entry, the trial court ordered that

Perry, Wilds and Bamer be allowed to cast absentee ballots in connection with the

November 7, 1995 general election, that the board of elections count such ballots

along with the twenty-four challenged absentee ballots, that the board combine the

results of these votes with the previously certified results of the November 7 general

election, and that the board “amend the abstracts of such election and issue new

certificates of election in any election where the outcome changes.” Additionally,

the trial court ordered the board of elections to pay Massie $5,931 in attorney fees

and expenses.

{¶ 6} On January 10, 1996, the trial court ordered the board of elections to

complete the counting of the absentee ballots and the certification of results no later

than January 16, 1996. On January 16, the trial court conducted a hearing to address

certain issues that had been raised by the board of elections concerning the manner

in which the absentee ballots were to be counted. On January 17, 1996, Jenkins

filed in this court a timely notice of appeal from the trial court’s December 28, 1995

judgment entry. Jenkins’s appeal was submitted directly to this court pursuant to

R.C. 3515.15.2 Additionally, on January 18, 1996, the board of elections filed a

notice of appeal in this court from the trial court’s December 28, 1995 judgment

entry. Thereafter, Massie moved to dismiss both appeals as untimely filed. On

2. R.C. 3515.15 provides:

“The person against whom judgment is rendered in a contest of election may appeal on

questions of law, within twenty days, to the supreme court; but such appeal shall not supersede the

execution of the judgment of the court. Such appeal takes precedence over all other causes upon

the calendar, and shall be set down for hearing and determination at the earliest convenient date.

The laws and rules of the court governing appeals apply in the appeal of contested election cases.

If the judgment of the lower court is affirmed, the supreme court shall order the judgment of such

lower court to be enforced, if the party against whom the judgment is rendered is in possession of

the office.”

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January Term, 1996

March 4, 1996, the trial court issued a judgment entry clarifying its orders of

December 28, 1995 and January 10, 1996, by specifying, among other things, the

precise manner in which the absentee ballots were to be counted and tallied.3 On

May 8, 1996, we granted Massie’s motion to dismiss the board of elections’ appeal,

but denied the motion to dismiss Jenkins’s appeal. See 75 Ohio St.3d 1475, 663

N.E.2d 1302. The cause is now before us on Jenkins’s R.C. 3515.15 appeal from

the trial court’s December 28, 1995 judgment entry.

__________________

Craig A. Allen, for appellant.

McTigue & Brooks and Donald J. McTigue, for appellee.

__________________

DOUGLAS, J.

{¶ 7} Jenkins presents a number of issues for our consideration. We have

carefully reviewed Jenkins’s arguments and have conducted a thorough review of

the record. For the reasons that follow, we affirm the judgment of the trial court in

all respects.

3. The trial court’s March 4, 1996 judgment entry reads, in part:

“Upon consideration of statements of counsel during the oral hearing [of January 16, 1996],

and the statements of the president of the Board of Elections during the oral hearing, the Court

hereby Orders, Adjudges and Decrees the following:

“1. All of the ballots which are the subject of this election contest shall be counted by

personnel of the Board of Elections by hand. This includes the twenty-four (24) absentee ballots

which had been previously held by the Board, as well as the three (3) ballots completed by the walk-

in voters pursuant to this Court’s previous Orders.

“2. The Board of Elections shall count and tally only the votes in the contested race (the

Rock Hill School Board election), and shall disregard all votes on all ballots for all other candidates

and/or issues.

“3. The Board of Elections shall issue a new Certificate of Election if the result in this

contested race is changed as a result of these twenty-seven (27) previously uncounted votes.

“4. The Board of Elections shall issue a revised Certificate of Election to the Secretary of

State of Ohio concerning the results of this contested race only.

“5. The Board of Elections shall count and tally all twenty-seven (27) votes together

regardless of the township and/or precinct in which each voter votes.

“6. The Board of Elections shall so certify the result of the contested race to the Secretary

of State of Ohio without regard to township and precinct location.”

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I

{¶ 8} Massie filed this election contest action in the Court of Common Pleas

of Lawrence County on December 4, 1995. On December 18, 1995, the trial court

conducted a hearing on the petition. Thus, the hearing occurred just fourteen days

after the action had been filed. In this regard, Jenkins suggests that the trial court

failed to strictly comply with the requirements of R.C. 3515.10 and that, therefore,

the court had no jurisdiction to hear and determine the election contest action. We

disagree.

{¶ 9} R.C. 3515.10 provides:

“The court with which a petition to contest an election is filed shall fix a

suitable time for hearing such contest, which shall not be less than fifteen nor more

than thirty days after the filing of the petition. * * * All parties may be represented

by counsel and the hearing shall proceed at the time fixed, unless postponed by the

judge hearing the case for good cause shown by either party by affidavit or unless

the judge adjourns to another time, not more than thirty days thereafter, of which

adjournment the parties interested shall take notice.”

{¶ 10} R.C. 3515.10 clearly contemplates that a hearing on a petition to

contest an election will be conducted (except in certain circumstances such as in

the case of an adjournment) not less than fifteen nor more than thirty days after the

filing of the petition. Specifically, R.C. 3515.10 requires a trial court to fix a

“suitable time” for hearing an election contest action and that the time set for trial

shall not be less than fifteen nor more than thirty days after the filing of the petition

to contest the election. In a series of prior cases, this court has held that the hearing

scheduling requirements of R.C. 3515.10 are jurisdictional in nature. The leading

cases on this issue are In re Contested Election of November 2, 1993 (1995), 72

Ohio St.3d 411, 650 N.E.2d 859; McCall v. Eastern Local School Dist. Bd. of Edn.

(1959), 169 Ohio St. 50, 8 O.O.2d 11, 157 N.E.2d 351; and Jenkins v. Hughes

(1952), 157 Ohio St. 186, 47 O.O. 127, 105 N.E.2d 58.

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January Term, 1996

{¶ 11} However, each of these three cases dealt with a situation markedly

different from the situation presented in the case at bar. Specifically, In re

Contested Election, McCall and Jenkins, supra, each dealt with a situation

involving some failure to observe the thirty-day time limitation provisions of R.C.

3515.10 (or its predecessor) which, on the facts of those cases, was considered to

be a jurisdictional defect. For instance, in In re Contested Election, supra, 72 Ohio

St.3d 411, 414, 650 N.E.2d 859, 862, we stated that “[c]ompliance with the R.C.

3515.10 hearing scheduling requirement is jurisdictional, and where the trial date

of the election contest is not set within thirty days after the filing of the petition and

no request is made for the scheduling of a hearing within that period, the court lacks

jurisdiction to proceed.” (Emphasis added.) See, also, McCall, supra, 169 Ohio

St. 50, 52, 8 O.O.2d 11, 12-13, 157 N.E.2d 351, 353 (“Under the controlling statute

[R.C. 3515.10], the setting of the hearing of a contested election not more than 30

days after the filing of the petition and the service of a copy of the petition on the

contestee are express conditions precedent which must be complied with before the

hearing of the contest can be had.”); and Jenkins, supra, 157 Ohio St. 186, 190, 47

O.O. 127, 129, 105 N.E.2d 58, 60 (“[W]here a contester, before the expiration of

the time within which an election contest under a statute must be tried, obtains a

postponement or acquiesces in a postponement which carried the case beyond the

time limit, he thereby discontinues his contest.”).

{¶ 12} Here, Massie’s election contest action was set for trial (and was

tried) prior to the expiration of the thirty-day time limitation set forth in R.C.

3515.10, but less than fifteen days after the filing of the petition. Commencing the

trial less than fifteen days after the filing of the petition constituted a technical

violation of R.C. 3515.10. However, the fact that the trial court conducted the

hearing in this case one day earlier than R.C. 3515.10 technically authorized does

not amount to a jurisdictional defect. Unlike In re Contested Election, McCall and

Jenkins, supra, Massie’s election contest action was promptly scheduled and

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prosecuted within thirty days of the filing of the petition. We have held, time and

again, that extreme diligence and promptness are required in election-related

matters. See, e.g., In re Contested Election, supra, 72 Ohio St.3d at 413, 650

N.E.2d at 862. See, also, Jenkins, supra, 157 Ohio St. at 190, 47 O.O. at 129, 105

N.E.2d at 60 (“The public interest in having election contests speedily determined

requires promptitude.”). Moreover, as we recognized in State ex rel. Byrd v.

Summit Cty. Bd. of Elections (1981), 65 Ohio St.2d 40, 43, 19 O.O.3d 230, 232,

417 N.E.2d 1375, 1378: “The purpose of the specific time limitation within

election statutes is to provide promptness and certainty in our elections in a

reasonable manner.” Apparently, Jenkins believes that the trial court, pursuant to

R.C. 3515.10, should have waited one more day before conducting the hearing.

However, the only thing that would have been accomplished by waiting the extra

day would have been to prolong (albeit by just one day) a final resolution in this

matter. Accordingly, on the facts of this case, we find no error rising to the level

of a jurisdictional defect.

II

{¶ 13} Turning our attention to the merits of this appeal, Jenkins argues that

the trial court erred in ordering the board of elections to count the twenty-four

absentee ballots that had (allegedly) been mailed back to the board by persons other

than the electors who had cast the ballots. We reject Jenkins’s arguments in this

regard.

{¶ 14} The board of elections disqualified the twenty-four ballots based

upon an improper interpretation of R.C. 3509.05. Specifically, the board apparently

believed that R.C. 3509.05 requires that the ballot of an absentee voter must be

disqualified if someone other than the voter mails the completed ballot and

identification envelope to the director of the board of elections. However, nothing

in R.C. 3509.05 required disqualification of the ballots in question.

{¶ 15} R.C. 3509.05(A) provides, in part:

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January Term, 1996

“When an absent voter’s ballot, pursuant to his application or request

therefor, is received by the elector, he shall, before placing any marks thereon, note

whether there are any voting marks on the ballot. In the event there are any voting

marks, the ballot shall be returned immediately to the board of elections; otherwise

he shall cause the ballot to be marked, folded in such manner that the stub thereon

and the indorsements and facsimile signatures of the members of the board of

elections on the back thereof are visible, and placed and sealed within the

identification envelope received from the director of elections for that purpose.

Then the elector shall cause the statement of voter on the outside of the

identification envelope to be completed and signed, under penalty of election

falsification.

“The elector shall then mail the identification envelope to the director from

whom it was received in the return envelope, postage prepaid, or he may personally

deliver it to the director, or the spouse of the elector, the father, mother, father-in-

law, mother-in-law, grandfather, grandmother, brother, or sister of the whole or half

blood, or the son, daughter, adopting parent, adopted child, stepparent, stepchild,

uncle, aunt, nephew, or niece of the elector may deliver it to the director, but the

return envelope shall be transmitted to the director in no other manner, except as

provided in section 3509.08 of the Revised Code.” (Emphasis added.)

{¶ 16} R.C. 3509.05 requires an absentee voter to either (1) “mail” the

identification envelope containing his or her ballot to the director of the board of

elections, or (2) “personally deliver” the ballot (or have some person specified in

the statute deliver the ballot) to the director of the board of elections. R.C. 3509.05

does not mandate that an absentee voter personally mail his or her ballot and

identification envelope to the director of the board of elections. The term

“personally” in R.C. 3509.05 is used only in connection with the phrase “personally

deliver.” Had the General Assembly intended to impose an obligation on an

absentee voter to personally mail his or her ballot and identification envelope to the

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board of elections, it certainly knew how to do so, i.e., the term “personally” could

easily have been inserted in R.C. 3509.05 immediately before the term “mail.”

Given that the General Assembly expressed no such intention, we presume that

R.C. 3509.05 imposes no obligation on an absentee voter to personally place his or

her ballot and identification envelope in the mailbox. Therefore, the fact that

someone else actually deposits the ballot in the mail is of no legal significance.

{¶ 17} Moreover, even if R.C. 3509.05 could be construed as requiring an

absentee voter to personally place his or her ballot and identification envelope in

the mail, R.C. 3505.28 provides, “No ballot shall be counted which is marked

contrary to law, except that no ballot shall be rejected for any technical error unless

it is impossible to determine the voter’s choice.” (Emphasis added.) Here, any

error in mailing was purely technical in nature. There was no evidence of fraud

with respect to these ballots and, as the trial court noted, “requiring a voter to

personally place his or her ballot in a mailbox or hand it to a postal worker in order

for the ballot to be counted raises form over substance.” Under these

circumstances, and in light of the policy of the law favoring free and competitive

elections (see, e.g., State ex rel. Giuliani v. Cuyahoga Cty. Bd. of Elections [1984],

14 Ohio St.3d 8, 10, 14 OBR 314, 316, 471 N.E.2d 148, 149; Stern v. Cuyahoga

Cty. Bd. of Elections [1968], 14 Ohio St.2d 175, 184, 43 O.O.2d 286, 291, 237

N.E.2d 313, 319; and State ex rel. Hanna v. Milburn [1959], 170 Ohio St. 9, 12, 9

O.O.2d 332, 333-334, 161 N.E.2d 891, 894), the trial court found that the twenty-

four challenged electors had substantially complied with the requirements of R.C.

3509.05. We agree that at a minimum the twenty-four voters “substantially”

complied with R.C. 3509.05.

{¶ 18} Accordingly, we find that the board of elections’ interpretation of

R.C. 3509.05 was contrary to law, and that the trial court was correct in ordering

the counting of the twenty-four absentee ballots.

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January Term, 1996

{¶ 19} Jenkins also suggests that the trial erred in finding that the three

electors who were refused absentee ballots at the board of elections’ office the day

before the November 7, 1995 general election (William Perry, Alberta Wilds, and

Kathy Bamer) had been improperly denied the right to vote. Jenkins’s arguments

are not well taken.

{¶ 20} The three electors attempted to vote by absentee ballot at the board

of elections’ office, during regular business hours, the day before the November 7,

1995 general election. Each of the electors had planned to be out of the county on

the day of the election for personal or business reasons. However, the board of

elections denied the electors the right to vote based on an advisory that had been

issued by the Secretary of State of Ohio on August 25, 1995. The advisory

contained a summary of the provisions of Am. Sub. H.B. No. 99, effective August

22, 1995, but mistakenly indicated that the current version of R.C. 3509.03

authorizes voters to request absentee ballots at the board of elections’ office the day

before an election only if there is some “unforeseen emergency” requiring the voter

to be absent from the county on election day. R.C. 3509.03 contains no such

restriction on the right to request absentee ballots at the board of elections’ office

the day before an election.4 The three electors, upon being informed that they could

4. R.C. 3509.03 provides, in part:

“Except as provided in division (B) or (C) of section 3503.16, section 3509.031, or division

(B) of section 3509.08 of the Revised Code any person desiring to vote absent voter’s ballots at an

election shall make written application for such ballots to the director of elections of the county in

which such person's voting residence is located. The application need not be in any particular form

but shall contain words which, liberally construed, indicate the request for ballots, the election for

which such ballots are requested, and, if the request is for primary election ballots, the person’s

party affiliation. The application for such ballots shall state that the person requesting the ballots is

a qualified elector, and the reason for the person’s absence from the polls on election day. The

application shall include sufficient information to enable the director to determine the precinct in

which the applicant’s voting residence is located and shall be signed by the applicant. If the

applicant desires ballots to be mailed to the applicant, the application shall state the mailing address.

“* * *

“Each application for absent voter’s ballots shall be delivered to the director not earlier

than the first day of January of the year of the elections for which the absent voter’s ballots are

requested or not earlier than ninety days before the day of the election at which the ballots are to be

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not vote, left the board of elections’ offices without voting and without having

tendering written applications for absentee ballots.

{¶ 21} Jenkins suggests that the board of elections reasonably relied on the

summary of R.C. 3509.03 contained in the advisory issued by the Secretary of State

in refusing to allow the three electors the right to vote. However, there is no

question that, pursuant to R.C. 3509.03, the three qualified electors had an absolute

right to walk into the board of elections’ office the day before the election and apply

for, receive, and cast absentee ballots, notwithstanding the fact that there was no

“unforeseen emergency” requiring that they do so. Each of the electors was a

qualified absentee voter because each had planned to be (and was) out of the county

on election day. See R.C. 3509.02(A)(7). The summary of R.C. 3509.03 relied

upon by the board of elections was clearly erroneous and could not constitute a

legitimate basis to deny these electors the right to vote.

{¶ 22} Additionally, Jenkins argues that the board of elections properly

denied the three electors the right to vote because, contrary to R.C. 3509.03, the

electors had failed to tender written applications for the absentee ballots. However,

the reason the board denied the electors the right to vote was based on the Secretary

of State’s advisory that contained significant errors concerning R.C. 3509.03—not

because the electors had failed to tender written applications for absentee ballots.

Additionally, these electors testified that they would have filed the appropriate

written application but for the fact they were told by the board that they could not

vote.

{¶ 23} For all of the foregoing reasons, we reject Jenkins’s arguments that

the trial court erred in upholding Massie’s election contest action. The record is

voted, whichever is earlier, and not later than twelve noon of the third day before the day of the

election at which such ballots are to be voted, or not later than the close of regular business hours

on the day before the day of the election at which the absent voter’s ballots are to be voted if the

application is delivered in person to the office of the board.”

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January Term, 1996

clear that the board of elections (1) disqualified and refused to count twenty-four

absentee ballots that should have been counted, and (2) improperly denied three

electors (Perry, Wilds and Bamer) the right to vote. Clearly, these election

irregularities affected enough votes to change or make uncertain the results of the

election for member of the Rock Hill school board.

III

{¶ 24} The bulk of Jenkins’s remaining arguments deal with the trial court’s

post-judgment order of March 4, 1996, wherein the trial court clarified, among

other things, the procedure by which the board of elections was to count and tally

the twenty-seven ballots the court had ordered to be counted in its December 28,

1995 judgment entry. First, Jenkins claims that the trial court’s post-judgment

order disenfranchised the twenty-seven voters because their votes were ordered to

be counted only in connection with the race for member of the Rock Hill school

board. Specifically, Jenkins suggests that the trial court should have ordered that

these votes be counted on all issues and in all races on the November 7, 1995

general election ballot. Second, Jenkins argues that the trial court erred by failing

to ensure the secrecy of the twenty-seven ballots by ordering that the ballots be

counted by hand and without regard to the township or precinct in which the

individual voters had voted. However, assuming that the issues concerning the

March 4, 1996 order are properly before us,5 we find no error requiring reversal of

the trial court’s judgment.

{¶ 25} With respect to Jenkins’s first argument, we find that the trial court’s

March 4, 1996 order did not impermissibly disenfranchise the twenty-seven voters

whose ballots the trial court had ordered to be counted only in connection with the

race for member of the Rock Hill school board. The local school board race was

5. We note that Jenkins never amended her notice of appeal from the trial court’s December 28,

1995 judgment entry to include, in this appeal, arguments concerning the trial court’s post-judgment

order of March 4, 1996.

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the only race at issue in Massie’s election contest action and, thus, the question how

the twenty-seven electors had voted in other races had no bearing on the issue

before the trial court. Moreover, it is clear that Jenkins suffered no prejudice as a

result of the alleged error.

{¶ 26} As to Jenkins’s second argument, we find that the trial court’s post-

judgment order was sufficient to ensure the secrecy of the ballots. Apparently, each

of the twenty-seven voters at issue was registered in precincts within the Rock Hill

Local School District. Twenty-five of the twenty-seven voters lived in one

township while the remaining two voters lived in a separate township. Had the trial

court ordered that the twenty-seven votes be counted, tallied, and reported to the

Secretary of State by precinct, the secrecy of these votes may have been

compromised. Accordingly, the trial court ordered the board of elections to count

all twenty-seven ballots by hand and without regard to precinct to preserve—not

destroy—the secrecy of the ballots. Nevertheless, Jenkins suggests that ordering

the board of elections to count the ballots by hand violated R.C. 3599.20. That

statute prohibits a person from, among other things, attempting to “induce an

elector to show how he marked his ballot at an election.” We fail to see how R.C.

3599.20 even applies under the facts of this case. Further, and in any event, it is

clear that Jenkins suffered no prejudice as a result of the trial court’s post-judgment

order requiring the counting of ballots by hand and without regard to the precinct.

{¶ 27} Accordingly, Jenkins’s arguments concerning the trial court’s March

4, 1996 order are not persuasive.

IV

{¶ 28} As a final matter, Jenkins contends that the trial court had no

authority to award attorney fees in favor of Massie and against the board of

elections. However, the trial court specifically ordered the board of elections to

pay Massie’s attorney fees, and Jenkins has failed to demonstrate that she was

adversely affected by this order. Under these circumstances, we find that Jenkins

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has no standing to challenge the award of attorney fees. Rather, that issue should

have been raised by the board of elections in a timely appeal to this court.

V

{¶ 29} For the foregoing reasons, we affirm the sound and well-reasoned

judgment of the trial court.

Judgment affirmed.

RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.

MOYER, C.J., COOK and STRATTON, JJ., concur separately.

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COOK, J., concurring separately.

{¶ 30} While I generally agree with the conclusion reached by the majority

in this case, I write to clarify my reasons for determining that R.C. 3515.10, as

applied, does not bar a court from exercising jurisdiction over an election contest

action heard fourteen days after it was filed.

{¶ 31} R.C. 3515.10 directs a court to fix a hearing on an election contest

petition no less than fifteen nor more than thirty days after a petition is filed. While

we have previously construed the thirty-day limit to impose a bar to the court’s

exercise of jurisdiction, the same conclusion is not foreclosed with respect to the

fifteen-day waiting period.

{¶ 32} The thirty-day limit is tied to the public interest in having the election

contest expeditiously determined. Jenkins v. Hughes (1952), 157 Ohio St. 186, 190,

47 O.O. 127, 128-129, 105 N.E.2d 58. The structure of R.C. 3515.10 reveals the

purpose of the fifteen-day waiting period. The contestee is permitted ten days from

the date of service to answer the contestor’s petition. The contestor is then given

five days to reply to the answer of the contestee. The aggregate of the filing

deadlines is fifteen days. Where the responsive pleadings have been filed and

served in fewer than fifteen days, there is no compelling reason to delay a hearing

on the petition.

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{¶ 33} Accordingly, in a case such as this, where appellant does not contend

that she was given inadequate time to prepare an answer to the contest petition, a

hearing commenced earlier than prescribed by R.C. 3515.10 will not invalidate the

court’s ruling on the contest petition as an extrajurisdictional act. The earlier

hearing date is not at odds with the purpose and structure of the statute.

MOYER, C.J., and STRATTON, J., concur in the foregoing concurring opinion.

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